Welcome to the copyright newsletter of the Intellectual Property Branch of the Attorney-General’s Department.
This is our final e-News for 2001. We wish all our readers a happy and safe festive season.
Copies of this newsletter and previous issues are available on the e-news on copyright web site at http://www.law.gov.au/ip. You may (and please do) forward this newsletter to friends and colleagues. Information on how to subscribe or unsubscribe is included at the end of this newsletter.
Go to the end of the copyright enews for answers to the following questions:
Following the 10 November 2001 election and the Coalition’s return to Government, the Hon Daryl Williams AM QC MP has been reappointed Attorney-General and Senator the Hon Chris Ellison has been reappointed Minister for Justice and Customs.
The Minister for Communications, Information Technology and the Arts is Senator the Hon Richard Alston, and the Minister for Arts and Sport is Senator the Hon Rod Kemp.
The Attorney-General has retained responsibility for copyright under the Administrative Arrangements Order of 26th November 2001. Arrangements for close cooperation between the Attorney-General’s Department and the Department of Communications, Information Technology and the Arts, will continue.
The Government has indicated in its election policies relevant to copyright and related rights that it will:
2. WIPO Copyright Treaty Soon to Enter into Force
With the accession on 6 December 2001 by Gabon to the WIPO Copyright Treaty (WCT), the WCT has now been ratified or acceded to by 30 countries. As the WCT provides that it enters into force 3 months after 30 signatures have been received, it will, as a result, enter into force internationally on 6 March 2002.
The 30 current signatories include the USA and Japan, but not the EC or EU countries, which are committed to ratifying the WCT but which are still in the process of legislating for the outstanding treaty obligations.
With the enactment and commencement on 4 March 2001 of the Copyright Amendment (Digital Agenda) Act 2000, Australia has implemented the main obligations of the WCT; the term of protection for photographs is still to be extended in conformity with the WCT art. 9.
In its Arts for All policy for last month's federal election, the Government pledged to extend the duration of copyright in photographs.
The WIPO Performances and Phonograms Treaty (WPPT), which is the other "Internet treaty" besides the WCT currently has 28 of the 30 ratifications/accessions required for it to enter into force.
The WIPO press release (PR/2001/300) on the entry into force of the WCT, which includes a list of the countries that have acceded to or ratified the WCT can be accessed at:
http://www.wipo.org/pressroom/en/index.html.
3. Report from Sixth Meeting of WIPO SCCRR - Progress Toward Possible Broadcasters' Rights Treaty
The World Intellectual Property Organisation (WIPO) Standing Committee on Copyright and Related Rights (SCCRR), held its 6th meeting in Geneva on 26-30 November 2001. It considered several treaty-language proposals submitted by the EC, Japan, Switzerland and Argentina, amongst others, on a possible new WIPO treaty to update protection for broadcasters. The USA, which did not participate in the substantive discussion, said that it had begun consultations on the proposed treaty and hoped to make a treaty-language proposal before the next meeting. Australia, represented by Chris Creswell, took part in the discussion, noting at the outset that it did not yet have a settled position on the issues.
Existing international broadcasters' rights, which date back to the Rome Convention 1961, afford little protection against cable retransmission and webcasting. At SCCRR 6, there was useful discussion of the need to identify the object of protection, distinguishing the broadcast signal from the transmitted material, which was mostly already protected. The protection of the broadcast signal was identified as the primary subject of the possible treaty or protocol. The extent of proposed protection was considered, including possible rights over cable retransmission (including deferred retransmission), Internet streaming, interception of signals prior to broadcasting, unauthorised decoding of encrypted signals and playing/showing or broadcasts in public. Various opinions were expressed on whether beneficiaries of protection should include cablecasters and webcasters as well as over-the-air broadcasters.
To facilitate further discussion, the WIPO Secretariat will prepare a technical background dealing with the issues raised by broadcasters' protection, for circulation to countries in advance of the next SCCRR meeting scheduled for May 2002.
Depending on progress at that meeting, the SCCRR may then consider scheduling a diplomatic conference to adopt the proposed treaty. Such a decision might also depend on agreement being reached to resume consideration of the proposed audio-visual performers’ treaty, on which there is a continuing stand-off between the EC and USA over one issue in a text that was otherwise agreed to at the 2000 WIPO diplomatic conference.
The WIPO report on the SCCRR 6 meeting should become available shortly on the WIPO web site at:
http://www.wipo.org/eng/meetings/2001/sccr/index_6.htm.
4. WIPO Inter-Governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
The Assistant Secretary of the Intellectual Property Branch, Joan Sheedy, is a member of the Australian delegation attending the second meeting of the WIPO Inter-Governmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, held in Geneva from 10-14 December 2001.
The working documents of the Inter-Governmental Committee are available at:
http://www.wipo.int/globalissues/igc/documents/index.html.
Those interested particularly in ‘folklore’ may wish to note the preliminary report WIPO has prepared on National Experiences with the Legal Protection of Expressions of Folklore. This report contextualises and summarises the 32 responses received from WIPO Member States in response to a questionnaire on National Experiences with the Legal Protection of Expressions of Folklore. Less than half of the respondents indicated that they had national laws specifically providing protection for expressions of folklore as intellectual property. A significant number of the initial respondents (and mainly those representing developing countries) indicated that they believed an international agreement for the protection of expressions of folklore was necessary. Australia's response to the questionnaire expressed the opinion that it would be premature at this stage to make a decision as to whether there is a need for an international agreement for the protection of expressions of folklore.
Few of the respondents indicated that they believe the principles underlying the WIPO/UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions are still current or viable.
The responses provided by the due date contained only very limited information on national experiences with the practical implementation of legislation to protect expressions of folklore. WIPO has extended the deadline for responses to the end of December and we understand that a further number of responses have already been received. Australia submitted a detailed response to the WIPO questionnaire. The Australian response notes that existing legal norms in Australia have been used in a number of cases, and are capable of being used, to provide a considerable level of protection in various situations where indigenous communities have expressed concern. The Australian response to the questionnaire, together with the responses provided by the other respondents, is also available on the WIPO web site.
Australia considers the IGC to be an important forum for the international consideration of issues concerned with intellectual property protection and indigenous communities, and will continue to play a constructive and active role in the discussions. The outcome of the meeting will be reported in the next issue of the e-News (and is likely to be available prior to that time from WIPO).
The Australian Government has made an electoral commitment to improving the protection of Indigenous cultural works through moral rights amendments (see Post-Election Update, above).
5. Progress Report: Collecting Societies Draft Code of Conduct
A Forum was held in September 2001 in relation to the draft Code of Conduct for Collecting Societies, providing opportunity for comment and discussion of the issues.
The Australasian Performing Right Association Limited (APRA) on behalf of the collecting societies, recently produced a revised version of the Collecting Societies' Code of Conduct as agreed amongst the societies following the Forum.
The development of the code was recommended by the House of Representatives Standing Committee on Legal and Constitutional Affairs in its report, Don't Stop the Music! and endorsed by the Government in its November 2000 response to the report (see http://www.ag.gov.au/publications/DSTMFinalGovtResp.htm.)
The code covers such matters as: dealings with licensees and members, distribution of royalty income, governance and accountability, training and awareness-raising, and complaints handling and dispute resolution.
The Government, through the Attorney-General’s Department and the Department of Communications, Information Technology and the Arts, will now examine and consider the revised code and issues associated with the code’s implementation before the it is submitted to Ministers.
6. Update: CLRC Inquiry into Copyright and Contract
In October 2001 the Committee published a Discussion Paper and held a consultative forum with key interests. The Discussion Paper is available at the Committee's web site: http://law.gov.au/clrc
In November the Chairman of the Committee, Professor Lahore chaired a session of the 10th Biennial Copyright Law and Practice Symposium devoted to the issue of Copyright and Contract.
The CLRC is due to deliver its final report to the Attorney-General on 30 April 2002. For further information, please contact the CLRC Secretariat on tel (02) 6250 6076, fax (02) 6250 5989 or e-mail clrc.secretariat@ag.gov.au.
7. New AGD Intellectual Property Branch Web Site
The Intellectual Property Branch has recently revamped its web site which includes material on:
The site contains useful information including facts sheets, a short guide to copyright, links to legislation, and links to press releases and speeches.
e-News subscribers are invited to visit the site at http://www.law.gov.au/ip/.
8. Cases of Note:
A number of recent cases have touched on issues that may be of interest to our readers. Short case summaries have been provided on each below, together with links to the full judgments.
Australian Video Retailers Association Ltd -v- Warner Home Video Pty Ltd [2001] FCA 1719
The applicants, AVRA and various video rental retailers, sought declarations that the respondents had made unjustifiable threats of civil and criminal proceedings for copyright infringement, arising out of statements made by the respondents concerning alleged infringement of their copyrights in respect of the contents of DVD disks. The respondents cross-claimed for declarations that copyright in films in certain DVD disks would be infringed by unlicensed rental and playing of the disks.
In answer to questions agreed on by the parties relating to DVD disks containing specified films, Emmett J of the Federal Court of Australia, in a judgment delivered on 7 December 2001, concluded that a person who plays the disks on either a DVD player or a PC does not make a copy of the whole or a substantial part of the film. He also decided that – in so far as the disks incorporated computer programs in which the copyright was owned by the respondents – the programs were not the "essential object" of any rental by the applicants of the disks, within the meaning of s. 31(5) of the Copyright Act 1968. Finally, Emmett J decided that playing the DVD disks on either a DVD player or a PC did not ordinarily result in the reproduction of those computer programs, although he acknowledged that a DVD player could be so modified as to enable the contents of its random access memory (RAM) to be reproduced and for a program to be installed in a PC to allow that possibility. In his reasons for judgment, Emmett J set out at some length the history and a description of the DVD system and the process of recording a film on DVD.
The decision can be accessed at: http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1719.html.
Australian Broadcasting Corporation -v- Lenah Game Meats Pty Ltd [2001] HCA 63.
Could the ABC publish illegally taped but non-confidential information where the ABC itself had not been involved in illegally obtaining the information? This question was at the heart of the matter of Australian Broadcasting Corporation -v- Lenah Game Meats Pty Ltd [2001] HCA 63. While issues of copyright law were considered only in passing, the case is interesting for its discussion of confidentiality and privacy.
The matter concerned an application to the Supreme Court of Tasmania for an interlocutory injunction to restrain the ABC from broadcasting a film made at the abattoirs of Lenah, pending hearing of an action brought by Lenah against the ABC and Animal Liberation Ltd. Lenah, which slaughters brush tail possums, claimed that unknown persons broke into its premises, installed video cameras and taped aspects of Lenah’s operations, in particular the stunning and killing of possums. It claimed that Animal Liberation Ltd gave a copy of the tape to the ABC which then intended to televise segments of the tape on the "7:30 Report" program.
The Court, at first instance, held that the statement of claim did not disclose any cause of action against the ABC and so dismissed the application for an interlocutory injunction. On appeal, however, the majority of the Full Court of the Supreme Court granted the injunction.
In contesting the appeal in the High Court, Lenah sought to uphold the order of the Full Court on the ground that it was unnecessary to identify a recognisable cause of action in circumstances, as in the present case, where the publication of the tape was unconscionable. The majority of the High Court rejected this argument, holding that the legal or equitable rights in respect of which final relief is sought must be identified before an interlocutory injunction can be granted. Lenah was unable to identify any equitable or legal right which had been or would be infringed by the ABC publishing the tape: it could not point to any law that the ABC had breached; it did not allege that the ABC was implicated in, or privy to, the trespasses upon Lenah’s premises; nor did it claim copyright, or any other form of intellectual property, in relation to the film. Accordingly, Lenah was not entitled to any legal or equitable remedy, including by way of injunction, against the ABC.
Lenah also submitted that the publication of the tape would constitute an actionable invasion of Lenah’s right to privacy. The majority of the High Court declined to recognise the existence of a tort of invasion of privacy under Australian law. Gummow and Hayne JJ, however, considered that Victoria Park Racing and Recreation Grounds Co Ltd –v- Taylor (1937) 58 CLR 479 (a case in which the High Court held that there was no proprietary interest in a spectacle) did not stand in the path of the development of a cause of action for invasion of privacy in respect of natural persons.
The judgment is available online at: http://www.austlii.edu.au/au/cases/cth/high_ct/2001/63.html.
Universal City Studios and Others -v- Corley – US Appeals Court Upholds Injunction Against Linking to DVD Decryption Code in Reimerdes
In Universal City Studios and Others v Corley, the US 2nd Circuit Court of Appeals upheld a District Court injunction granted in Universal City Studios and others v Reimerdes and others, 111 F. Supp. 2d 346 (S.D.N.Y. 2000).
The injunction barred Corley and his company, 2600 Enterprises, (the Appellants) from posting on their web site a computer program which decrypts the encryption code limiting access to DVD movies, and from knowingly linking their web site to other web sites on which the decryption program was posted.
The Appellant argued primarily that (1) the US Digital Millennium Copyright Act 17 U.S.C. § 1201 (‘DMCA’) oversteps limits on the duration of copyright protection; (2) the DMCA as applied to the dissemination of DeCSS (a decryption program) violates the First Amendment of the US Constitution because computer code is ‘speech’ and therefore entitled to full First Amendment protection; and (3) the DMCA violates the First Amendment by unduly obstructing the ‘fair use’ of copyright materials. The Appellant also argued that the DMCA is susceptible to, and should be given, a narrow interpretation that avoids constitutional objections.
The Court of Appeals considered the arguments above and concluded that they provide no basis for overturning the District Court's judgment. This included a rejection of the Appellant's First Amendment challenge to the to the DMCA. The Court of Appeals did note, however, that computer code, and computer programs constructed from the code, can merit First Amendment protection, but that the capacity of a decryption program like DeCSS to accomplish unauthorised and unlawful access to materials must inform and limit the scope of First Amendment protection.
The Appeals court’s decision can be accessed at http://laws.findlaw.com/2nd/009185.html.
Cases on Appeal to Full Federal Court of Australia:
Telstra Corporation Ltd -v- Desktop Marketing Pty Ltd [2001] FCA 612; [2001] FCA 814
The Full Federal Court has part heard the appeal in this matter with the final day of hearing set down for 18 December 2001.
The judgment the subject of the appeal (held at first instance that copyright subsisted in Telstra’s White pages and Yellow pages telephone directories and in its headings books, and that the defendants had infringed copyright.
The findings of Finkelstein J in the first instance are available on line at
http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/612.html. For a brief summary of the findings in that judgment refer to Issue 21 of e-News (June 2001).
The further orders made by Finkelstein J to give effect to his reasons are available on line at:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/814.html.
TCN Channel Nine v Network Ten [2001] FCA 841 (‘the Panel case’)
This case is also on appeal.
In TCN Channel Nine Pty Ltd & Ors v Network Ten Pty Ltd [2001] FCA 108) Conti J dismissed the Channel Nine’s action for breach of television broadcast copyright by Channel 10 by way of re-broadcasting pursuant to s 87(c) of the Copyright Act under s 101(1) of the Act. The court found that Channel Ten did not broadcast a substantial part of Nine's programmes the subject of each of re-broadcasts under s 14(1)(a) of the Copyright Act.
In an additional judgment, Conti J also held that no breach occurred of Nine's television broadcast copyright pursuant to s 87(a) of the Copyright Act.
The findings of Conti J in the first instance are available on line at:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/108.html
http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/841.html.
WHO DO I CONTACT IN THE IP BRANCH?
A. International and projects, including:
Contact: Chris Creswell, tel: 02 6250 6318; email: chris.creswell@ag.gov.au
B. Trade and regional issues, including:
Contact: Stephen Fox, tel: (02) 6250 6313; email: stephen.fox@ag.gov.au
C. New technologies issues and projects, including:
Contact: Simon Cordina, tel (02) 6250 6608; email: simon.cordina@ag.gov.au
D. Copyright Law Review Committee Secretariat:
Contact: Fiona Phillips, tel 02 6250 6658; email: fiona.phillips@ag.gov.au
If you wish to contact the IP Branch on another matter, please contact our Branch Head, Joan Sheedy, (tel: (02) 6250 6313; fax: (02) 6250 5929; email: joan.sheedy@ag.gov.au.
Peter Treyde (tel: (02) 6277 7300) is the current officer responsible for copyright matters in the office of the Attorney-General, Mr Daryl Williams AM QC MP.
For administrative matters, please contact: Michelle Tippett (tel: (02) 6250 6655; Fax: (02) 6250 5929 email: michelle.tippett@ag.gov.au).
The IP Branch produces a booklet entitled Copyright Law in Australia: A Short Guide. It has recently published an updated version of this guide to reflect recent legislative amendments.
To obtain copies please phone (02) 6250 6655. The updated version is available on-line at http://www.law.gov.au/ip.
The IP Branch does not give legal advice to members of the public. The IP Branch can provide Commonwealth Government departments and agencies with legal advice on copyright law matters.
Individual creators with a specific copyright inquiry may be able to obtain advice from the Australian Copyright Council tel: 02 9318 1788. See also the Copyright Council website at http://www.copyright.org.au.
For information on patents, trade marks and designs contact IP Australia on
tel: 1300 651 010 or access information on-line at http://www.ipaustralia.gov.au.
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Attorney-General's Department. Intellectual Property Branch.
e-News on Copyright December 2001.
© Commonwealth of Australia 2001.